HomeMy WebLinkAbout682 KuskyMr. Mike Kusky
c/o Chartiers Township
2451 Pike Street
Houston, PA 15342
Re: 87 -080 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17t20
ORDER OF THE COMMISSION
ORDER W. 682
DATE DECIDED: September 28. 1988
DATE MAILED: October 13, 1988
Dear Mr. Kusky;
The State Ethics Commission has received a complaint regarding
you and a possible violation of Act 170 of 1978. The Commission has
now completed its investigation.- The individual allegations,
conclusions, and findings on which those conclusions
are based are as follows:
I. Allegation: That you, a Supervisor for Chartiers Township,
Washington County, violated the following provisions of the Ethics Act
when you received health insurance coverage at township expense
without auditor approval; and in that you voted to hire your son for a
full -time position with the township road department.
Section 3. Restricted Activities.
(a) No public official or public employee shall
use his public office or any confidential
information received through his holding public
office to obtain financial gain other than
compensation provided by law for himself, a member
of his immediate family, or a business with which
he is associated. 65 P.S. Code S403(a).
A. Findings:
1. You serve as a Township Supervisor in
Washington County, Pennsylvania.
a. You have served in this position
Chartiers Township,
since 1974.
Mr. Mike Kusky
Page 2
b. You have never been appointed as a full -time or part -time
employee of the township.
2. Medical and hospitalization insurance for township employees and
Supervisors is administered by Blue Cross /Blue Shield of Western
Pennsylvania, Box 1018, Pittsburgh, Pennsylvania 15230.
3. You participated in this medical and hospitalization program at
the township's expense.
4. Minutes of the Chartiers Township Board of Supervisors Meetings
reflect the following regarding medical /hospitalization
benefits:
A. January 7, 1985:
(1)
Regarding insurance benefits: Motion by Casper,
seconded by Kovatch to retain the same coverage as
last year, as follows:
Township will continue providing of benefits for Life
Insurance, disability, and hospitalization insurance.
This applies to full -time employees and Supervisors.
Motion carried - Casper and Kovatch (Kusky absent).
(2) Motion by Casper to continue to extend
hospitalization coverage to extra or full -time
employees at the discretion of Board when
reasonable cause has been indicated that such is
necessary. Seconded by Kovatch.
All in favor Casper and Kovatch (Kusky absent).
Supervisors appoint themselves Superintendents of the
township road system, and shall be entitled to all
benefits provided the employees of said township.
Supervisors are encouraged to donate their time as much
as possible within reason in the execution of their
duties and specific duties related to Township matters.
Motion by Casper. Seconded by Kovatch.
All in favor - Casper and Kovatch (Kusky absent).
B. 'January 5, 1987:
(3)
(1) Insurance benefit coverage: Motion by Casper,
seconded by Kovatch to remain the same as last year --
Township will continue coverage of benefits for Life
Mr. Mike Kusky
Page 3
(2)
(3)
(2)
(3)
Insurance, disability, and hospitalization insurance.
This applies to full -time employees and Supervisors.
Motion carried. (No listing of any abstentions or no
votes).
Supervisors voted themselves Superintendents of the
Township road system, and shall be entitled to any and
all benefits provided to work on road so designated in
the Second Class Township Code. Supervisors are
encouraged to donate their time as much as possible
within reason in the execution of their duties and
specific duties related to Township matters. Motion by
Kovatch, seconded by Kusky. (All in favor. Present
Kovatch, Kusky, Casper).
Compensation for Supervisors attending Township
meetings under the new rule - Casper entitled to
$100.00 per month.
Casper commented, since Kovatch was re- appointed as
Supervisor he would be entitled to the new amount.
Kovatch wished to go on record saying "I refuse to
accept the new rate." Motion made by Casper that Kusky
be paid on monthly basis, the sum of $166.67. Seconded
by Kovatch.
Motion carried.
C. January 4, 1988:
(1) Motion made by Kusky to continue insurance benefit
coverage as in previous years. Motion died for lack of
second.
Kovatch felt that Supervisors are not entitled to
hospitalization benefits.
Kovatch made a motion to pay hospitalization benefits
for all full -time employees (leave out Supervisors).
Motion died for lack of a second.
Kovatch felt that if Kusky receives insurance, so
should Casper.
Casper made a motion for the township to continue
coverage of benefits of life insurance, disability,
hospitalization insurance, and dental for all full -time
employees and Supervisors as permitted by law pending
Auditor approval. Motion seconded by Kusky.
Mr. Mike Kusky
Page 4
(
(5)
Roll call: Casper - yes, Kovatch - no, Kusky - yes.
Motion carried.
Motion to acknowledge the fact that the Supervisors of
the Township of Chartiers will continue to act as
Superintendents of the Township road system, and shall
be entitled to any and all benefits provided to work on
the roads so designated in the Second Class Township
Code.
All in favor.
In a discussion regarding compensation, and punching
time cards, it was stated that there will be no
compensation for workshops.
All in favor.
5. Chartiers Township Auditors meeting minutes reflect the following
regarding compensation for township supervisors:
a. 1/8/85 - Supervisors pay rate set at $5.77 per hour, for
road work.
Rate effective 1/1/85.
Stipulation - if a rate increase is gran to the
township employees during the year, the
supervisor's rate may be adjusted to that of
Laborer /Truck driver classification.
b. 1/7/86 - Supervisors pay rate set at $6.17 per hour.
Rate effective 1/1/86.
Rate determined from the rate paid to
Laborer /Truck driver-
c. 1/6/87 - Supervisors pay rate set at $6.36 per hour,
Rate effective 1/1/87.
Rate determined from the rate paid to
Laborer /Truck driver.
d. 1/5/88 - Supervisor's pay rate set at $6.55 per hour.
Rate effective 1/1/88.
kits
Mr. Mike Kusky
Page 5
6. Records of Chartiers Township contain a letter to the Supervisors
from the Auditors in regard to their observations and recommendations
on the completion of the 1987 audit report. In finding #6 the
auditors stated:
a. They have questioned in past years, the paying by the
township of hospitalization for the supervisors who are
full -time employees of other organizations.
b. They previously requested Casper to reimburse the township
for the hospitalization benefits, and he had complied, even
though he has not fully reimbursed the township to date.
c. The Ethics Commission has ruled on numerous occasions that
if a Supervisor is not a full -time employee of the
township, he should not qualify for benefits such as
hospitalization, etc.
d. Kusky has been receiving hospitalization benefits paid for
by the township.
e. They recommend that the township be reimbursed the amount of
$2,579.99 for the year 1987, by Kusky.
7. Records of Blue Cross of Western Pennsylvania indicate the
following regarding the monthly cost of your participation in this
program:
a. HOSPITALIZATION
Invoice Date Premium
9/5/85 $178.33
11/5/85 182.23
1/5/86 182.23
3/5/87 191.03
9/5/87 191.03
11/5/87 205.17
12/10/87 217.07
b. DENTAL
Invoice Date Premium
12/18/85 $19.65
12/18/86 22.30
Rate determined from the rate paid Laborer /Truck
driver.
Mr. Mike Kusky
Page 6
10/20/87
12/17/87
22.30
24.45
8. The total amounts expended by the township for the above
insurance coverage were as follows:
a. 1985 - April through October at $178.33/mth. =$1,248.31
November and December at $182.23/mth. =$ 346.46
Dental - April through December at $19.55 /mth.= $176.85
b. 1986 - January through December at $182.23/mth.= $2,186.76
Dental - January through Dec. at $19.65 /mth. =$ 235.80
c. 1987 - January and October at $191.03 /mth. = $1,910.30
November at $205.17 /mth. _$ 205.17
December at $217.07 /mth. _$ 217.07
Dental - January through Dec. at $22.30 /mth. =$ 267.60
d. 1988 - January through Dec. at $22.30 /mth. _$ 868.28
Dental - January through April at $24.45/mth. _,_ 97.8Q
Total = $7,778.40
e. Your participation in the above program at the
township's expense was terminated in May 1988.
9. Records of Chartiers Township indicate that payment by the
township for your insurance benefits was made from the Chartiers
Township General Fund checking account at Equibank on a monthly
basis as part of the payment for the total benefit package for
all township employees.
10. Records of Chartiers Township indicate that you
participated, at the township's expense, in a life and disability
insurance program.
11. This program was administered through the Trustees Insurance
Fund, Camp Hill, Pennsylvania.
12. Invoices from Trustees Insurance Fund to the township for
your participation in this program indicate the following
regarding payments for these benefits on your behalf:
Invoice Date
12/14/84
12/16/85; 7/15/85
12/15/86; 7/15/86
12/15/87; 7/15/87
Disability
$99.00
$99.00
$99.00
$99.00
Life
$ 76.82
$143.10
$207.92
Mr. Mike Kusky
Page 7
13. Total expenditures by the township for your participation in
the disability and life insurance programs were as follows:
a. September 1984 /September 1985 at $76.82/yr. =$ 76.82
Disability at $99.00 /yr.
pro -rated April through Dec. 1985 at $6.40 /mth. =$ 57.60
b. September 1985 /September 1986 at
Disability at $99.00 /yr.
c. September 1986 /September 1987 at
Disability at $99.00/yr.
d. September 1987 /September 1988 at
Disability at $99.00 /yr.
pro -rated January through August
e. Your insurance coverage was
township was reimbursed for
through December 1988.
b.
One
the
the
14. The township expended the following amounts
April 1985 to September 1988:
a. Major Medical /Dental
cancelled effective
the amount expended
$7,778.40
16. Two employment applications on file
Township building show the following:
a. John J. Kusky
1364 Henderson Ave.
Washington, PA 15301
(412) 228 -1925
$76.82/yr.
$143.10 /yr.
$207.92/yr.
1988
Total
for your
b. Life and Disability 826.66
Total $8,605.06
15. According to the Township auditors, they never approved
hospitalization or insurance benefits for the Supervisors.
=$ 76.82
=$ 99.00
= $143.10
=$ 99.00
= $207.92
=S 66.40
$826.66
benefits from
a. One township auditor believed that the supervisors
should be entitled to participate in the program.
township auditor stated that she was not aware that
supervisors were receiving insurance benefits at
township's expense until 1987.
at the Chartiers
9 -1 -88 and the
for September
Mr. Mike Kusky
Page 8
b. Application dates: 4/9/87 & 7/8/85
Social Security: 207 -28 -4137
18 yrs. or older: yes
Graduated High School: 1955
c. Date of Birth: May 22, 1937.
d. Michael Kusky is listed as a relative.
17. John J. Kusky is your son.
18. Minutes of the Chartiers Township Board of Supervisors
meetings indicate the following regarding the employment of your
son.
a. April 8, 1987: Applications were presented for appointment with
the road department. Daniel Casper asked to be
put on with the road department. An application
for John Kusky, who is somehow related to Mike
Kusky, he too would like to work on the road
department. Jeff Henderson would also like to
work on the road department.
Motion by Casper to appoint Daniel and the Kusky
boy and put them on the road department. There
was a discussion.
Motion by Casper to appoint Daniel Casper on the
road department, seconded by Koavatch for
Daniel.
Motion carried. No abstentions or no votes
recorded.
Motion by Casper to appoint John Kusky,
discussion, Kovatch said he wanted to see the
application. Motion seconded by Kusky.
Roll call: Casper - yes, Kovatch - abstain,
Kusky -yes. Motion carried.
b. April 22, 1987: Kovatch said his son works for the township when
needed, during the winter from 4:00 p.m. to 9 :00
p.m., during the summer hours to operate the
tractor mower.
Residents and laid off extra's want an answer to
hiring practice.
Resident, Przystup, questioned the Board for age
discrimination practice, when he was by- passes!
Mr. Mike Kusky
Page 9
over others to be appointed as regulars. The
others had not even worked on the road
department, as he had, part -time.
c. May 12, 1987: Question on the status of the two regulars
appointed to the road department and where part -
time employee Przystup stands. Casper stated
there is no change in the hiring status at the
present time.
On the hiring of relatives as Township employees
- Liekar received an answer from the Ethics
Commission regarding hiring relatives as Township
employees. Casper read the reply to the
audience. Copy attached to the minutes. Liekar
recommended the Supervisor's take action on the
letter at the next meeting. Casper indicated a
change in their voting will take place at that
meeting.
d. June 10, 19874 Re: Letter from Ethics Commission on the hiring
of relatives as township employees. Liekar
explained that the township must remove personnel
from the payroll roster who were hired in
violation of the Ethics Commission ruling.
Casper made a motion to remove his son Daniel
Casper from the payroll roster. Seconded by
Kovatch.
Motion carried: Casper - abstained, Kovatch -
yes, Kusky - yes.
Kovatch made a motion to hire Daniel Casper and
Ronnie Chappel as summer help to be used at the
discretion of the road foreman. Motion died for
lack of a second.
Casper made a motion to remove Dolores Kovatch
from the payroll roster as a township employee.
Seconded by Kusky.
Motion carried. Casper - yes, Kusky - yes,
Kovatch - abstained.
Casper made a motion to rehire Dolores Kovatch as
the township custodian at the rate established in
the January 1987 organizational meeting. Motion
died for lack of a second.
Mr. Mike Kusky
Page 10
e. June 24, 1987: Kovatch made a motion ..o remove John Kusky from
the Township payroll roster. Motion died for
lack of a second.
Kovatch made a motion to hire Daniel Casper, Ron
Chappel, Frank Przystup and John Kusky as summer
help because the road department is falling
behind on planned projects and grass cutting.
All four motions died for lack of a second.
19. Chartiers Township W-2 Wage and Tax Statements and Payroll records
reflect the following:
1981 1982 1983 1984 1985 1986 1987 *
Kusky, M. 4,705.46 990.53 975.03 771.01 914.98 1,861.59 1,527.34
(S.S. 697.00)
Kusky, J. - -- - -- - -- - 5,180.05
*As of 8/2/87
20. Township Solicitor James Liekar stated tha'.. following:
a. He did not advise the Supervisor's if they did not ask.
b. After reviewing the Ethics Act, he found no conflict in
your son working for the township.
21. You have stated the following in regard to the instant
situation:
a. Your son John, is currently 53 years old and lives in
his own home. His date of birth is 5/2/37.
b. Township Solicitor, James Liekar, informed you that as
long as your son was over 18 and not living with you,
he could be hired by the township.
c. Supervisor Casper is the one who suggested hiring your
son.
d. Your son was out of work since 1984. He had previously
been working in Mexico.
e You did not want your son working at the Township
because you didn't want the hassle.
f. You believe that Supervisor Kovatch abstained oh the
vote to hire your son, because you abstained from
voting to re -hire his wife as custodian.
g. You stated that you were an employee of thr Township.
Mr. Mike Kusky
Page 11
p.
q.
h. The Supervisors appointed themselves Superintendents
each year.
i. You were not appointed as a full -time employee of the
township.
You were doing quite a bit of work for the township
prior to 1984 when you became ill. You probably did
not work 40 hours a week prior to this time.
k. You were in and out of the hospital from 8/84 to 8/86,
and only recently received your physicians release to
go back to work.
1. Since you were a working supervisor before you got
sick, your benefits should have carried through your
illness.
jo
m. By "Superintendents" - the Supervisors meant that they
were permitted to work, whenever capable, and as often
as they want.
n. The auditors did not approve of your hospitalization
benefits with the Township, but they did not
disapprove.
o. The township solicitor never advised you that you could
not participate in the township hospitalization plan.
In 1988 you were taken off the township dental plan at
your request.
You are sorry this whole thing came about, and if you
had known this earlier, you would have stopped it long
ago.
B. Discussion: As a supervisor in Chartiers Township, you are
a public official subject to the provisions of the Ethics Act.
65 P.S. §402; Sowers, Opinion 80 -050; Szvmanowski, Order No. 539
Section 3(a) of the Ethics Act provides:
Section 3. Restricted Activities.
(a) No public official or public employee
shall use his public office or any
confidential information received through his
holding public office to obtain financial
gain other than compensation provided by law
for himself, a member of his immediate
Mr. Mike Kusky
Page 12
family, or a business with which he is
associated. 65 P.S. Code §403(a).
Section 3(a) specifically provides that a public official
may not use his public office or confidential information to
obtain a financial gain for himself other than compensation
provided for by law.
The compensation which is allowed for a supervisor is
strictly regulated by statutory and decisional law.
Under Section 3(a) of the Ethics Act, this Commission has
previously determined that a township supervisor may not receive
at township's expense, health, hospitalization, medical and life
insurance benefits when such supervisor acts only in the capacity
of a supervisor. Krane, Opinion 84 -001; Cowie, Opinion 84 -010.
Additionally, even if such a supervisor is employed by the
township as a superintendent, secretary /treasurer, roadmaster or
laborer in accordance with the Second Class Township Code, such
benefits are considered compensation and must, therefore, be
fixed as such by the township board of auditors. See Svnoski v.
Hazel Township, 93 Pa. Commw. 168, 500 A.2d 1282, (1985); In re:
Appeal of the Auditors Report of Munch Creek Township, Pa.
Commw. Ct. , 520 A.2d 1241, (1987); Hunt, Order No. 348 -R.
The foregoing principle was recently reaffirmed by Pennsylvania
Commonwealth Court in Yocabet v. State Ethics Commission, Pa.
Commw. Ct., 531 A.2d 536 (1987). In the cited case, the Court
held inter alia that a township supervisor violated Section 3(a)
of the Ethics Act when he received a salary for the position of
secretary /treasurer which had not been set by the auditors. The
Court, in affirming the Order of the Ethics Commission which
required a restitution of the financial gain, noted on page 539
of its Opinion:
Section 7 of the Ethics Act instructs the Commissicn
to investigate situations where there is a reasonable belief
that financial conflict may exist, and if conflict is found,
to require the offender to remove himself from the conflict
without gain.
Any benefits received other than as provided for above, would
constitute a financial gain obtained in violation of the State
Ethics Act. See McCutcheon v. State Ethics Commission, 77 Pa.
Commw. 529, 466 A.2d 283, (1983); Conrad v. Exeter Township, 27 D
& C 3d 253, (1983). These principles of law are now well settled
and'constitute the law under which this situation must be
reviewed. See In re: Resort of Audit of South Union Townshi
47 Pa. Commw. 1, 407 A.2d 906, (1979). Further, the right to
sue for the restitution of the financial gain obtained in
Mr. Mike Kusky
Page 13
violation of the Ethics Act has been upheld by Commonwealth
Court in Fee v. Commonwealth of Pennsylvania and Township of
Union, Pa. Commw. Ct. , 540 A.2d 1385 (1988).
In the instant matter, you were not a full -time or part -time
employee (supervisor) of the township but you received medical
and hospitalization insurance at township expense. In a January
5, 1987 meeting of the Board of Supervisors, you voted in favor
of a motion to continue the insurance coverage for you and the
other supervisors. The Supervisors voted themselves
Superintendents which appears to be contrary to the Second Class
Township Code, 53 P.S. 565514. In a January 4, 1988 meeting a
motion was made and approved to continue insurance coverage
subject to auditor approval. The auditors of Chartiers Township
have stated that they never approved insurance benefits for the
supervisors. Even if the auditors had approved such insurance
benefits, their actions would be to no avail since you were not a
working supervisor.
Although it appears that you may have been receiving
insurance benefits for most if not all of the time that you have
been a supervisors since 1974, Act No. 1988 -41 in Section 1(b)(2)
provides amnesty for any benefits received between January 1,
1959 and March 31, 1985. Thus, even though Section 3(a) of the
Ethics Act would be implicated for any benefits you received
during the amnesty period, no penalty may be assessed against you
for the benefits you received between January 1, 1959 and March
31, 1985. However, in this case, you have received $8,605.06 in
township paid insurance benefits after the end of the amnesty
period. Your receipt of these benefits at township expense
violated Section 3(a) of the Ethics Act; you must return this
unlawful gain to your township. McCutcheon and Yocabet, supra.
You are hereby directed to forward a check to the State Ethics
Commission in the amount of $8,605.06 payable to Chartiers
Township within thirty (30) days of the date of this order or
this matter will be referred to the appropriate law enforcement
authority.
Turning to the second allegation concerning the hiring of
your son to a position with the township road department, it is
noted that you did vote in favor of a motion to appoint your son
in an April 8, 1987 meeting of the Board of Supervisors. Since
it is established that you voted in favor of a motion to appoint
your son, the remaining question to be resolved is whether your
son is a member of your immediate family as that term is defined
in the under the Ethics Act:
"Immediate family" is defined under Section 2 of the Ethics
Act as follows:
Mr. Mike Kusky
Page 14
Section 2. Definitions.
"Immediate family." A spouse residing in the
person's household and minor dependent
children. 65 P.S. 5402.
Since your son was 51 years of age at the time of his
appointment, he is not a member of your "immediate family" under
the Ethics Act. Accordingly, you did not violate Section 3(a) of
the Ethics Act when you voted for your son. Modrovich, Order
585. Although this Commission finds that there is no violation
as to this allegation, the foregoing is not to be construed as an
acceptance of your action. Section 1 of the Ethics Act recites
that public office is a public trust and that "any effort to
realize personal financial gain through public office other than
compensation provided by law is a violation of that truy't."
65 P.S. 5401. You are advised that you must abstain in all
future similar situations.
C. Conclusion and Order:
1. As a Chartiers Township Supervisor, you are a public
official subject to the provisions of the Ethics Act.
2. You violated Section 3(a) of the Ethics Act when you
received insurance benefits at township expense from April,
1985 to September, 1988.
3. The amount of the financial gain you received, referenced in
paragraph 2 amounts to $8,605.06.
4. You are hereby directed to forward a check to the State
Ethics Commission payable to Chartiers Township in the
amount of $8,605.06 within thirty (30) days of the date of
this order.
5. Failure to comply with the provision of paragraph 4 above
will result in the referral of this matter to the
appropriate law enforcement authority.
6. You did not violate Section 3(a) of the Ethics Act when you
voted for appointment of your adult son who was not a member
of your immediate family.
7. You are further advised that Section 1 of the State Ethics
Act provies that public office is a public trust and that
any effort to obtain a financial gain through public office,
other than the compensation provided for by law is a
violation of such trust, You, thus, must in the future
abstain from participation in any matter regarding your son.
Mr. Mike Kusky
Page 15
Our files in this case will remain confidential in
accordance with Section 8(a) of the Ethics Act, 65 P.S. 5408(a).
However, this Order is final and will be made available as a
public document 15 days after service (defined as mailing) unless
you file documentation with the Commission which justifies
reconsideration and /or challenges pertinent factual findings.
See 51 Pa. Code 52.38. During this 15 -day period, no one,
including the respondent unless he waives his right to challenge
this Order, may violate this confidentiality by releasing,
discussing or circulating this Order.
Any person who violates the confidentiality of a Commission
proceeding is guilty of a misdemeanor and shall be fined not
more than $1,000 or imprisoned for not more than one year or
both, see 65 P.S. 5409(e).
By the Commission,
$46*Pe kk'."1.CPS".
Joseph W. Marshall, III
Chairman